Appeals court to activists: Nope, you can’t see what else the Feds have on you

On Friday, a federal appeals court in Virginia ruled (PDF) that three activists involved in a WikiLeaks investigation have no right to find out what companies the government sought information from other than Twitter.

In November 2011, a district court judge found that prosecutors could compel Twitter to give up specific information on the three accounts, including IP addresses, direct messages, and other data.

The ACLU and EFF had challenged the government’s right to keep secret additional, related orders—specifically known as “2703(d) orders” and pen registers. Such orders are issued at a much lower legal standard than a probable cause-driven warrant.

“This is certainly a sad day,” Appelbaum wrote on Twitter. “It is personally soul crushing to continue to lose the fight for government transparency.”

Specifically the Fourth Circuit Court of Appeals rejected the argument that the public had a right to access such records under the First Amendment, as well as the fact that the case was in the public interest. The court ruled that such orders were part of the investigation and needed to stay sealed.

“The § 2703(d) process is investigative, and openness of the orders does not play a significant role in the functioning of investigations,” the Court found.

“Section 2703(d) proceedings can be likened to grand jury proceedings. In fact, they are a step removed from grand jury proceedings, and are perhaps even more sacrosanct. Proceedings for the issuance of § 2703(d) orders are also like proceedings for the issuance of search warrants, which we have noted are not open,” the court wrote in its decision.

We'll just add that to the list of other amendment the administration thinks are irrelevant.

Not to give the current administration a pass but I'm sick of people acting like this all started with Obama. This has been going on for the last few administrations.

So complacency towards an unconstitutional set of rules is fine, so long as they only inherited it? Does 'The buck stops here' mean anything anymore?

It's so strange that you quoted a post which was only two sentences, yet it seems as though you managed not to read both of them. Nothing about that post implied that the administration's actions are acceptable.

Paraphrasing: Fourth Circuit rules that government doesn't have to keep you informed of their progress in a criminal investigation.

This ruling has exactly nothing to do with the Fourth Amendment (which seems not to have even been part of the ACLU/EFF's argument in the first place).

Whether 2703(d) is constitutional in the first place may be a Fourth Amendment question, but this ruling is only peripheral to that. Basically, what the circuit has ruled in this case is that if 2703(d) is constitutional, then the government can use it to investigate and can keep it's investigations secret from the public (which is how almost all criminal investigation is conducted, btw). And if 2703(d) is unconstitutional, then that is a separate issue outside the scope of this relatively narrow appeal.

Paraphrasing: Fourth Circuit rules that government doesn't have to keep you informed of their progress in a criminal investigation.

This ruling has exactly nothing to do with the Fourth Amendment (which seems not to have even been part of the ACLU/EFF's argument in the first place).

Whether 2703(d) is constitutional in the first place may be a Fourth Amendment question, but this ruling is only peripheral to that. Basically, what the circuit has ruled in this case is that if 2703(d) is constitutional, then the government can use it to investigate and can keep it's investigations secret from the public (which is how almost all criminal investigation is conducted, btw). And if 2703(d) is unconstitutional, then that is a separate issue outside the scope of this relatively narrow appeal.

Don't defendants need to know what information is being used against them, and where that information came from? Pretty sure that's the law...

Paraphrasing: Fourth Circuit rules that government doesn't have to keep you informed of their progress in a criminal investigation.

This ruling has exactly nothing to do with the Fourth Amendment (which seems not to have even been part of the ACLU/EFF's argument in the first place).

Whether 2703(d) is constitutional in the first place may be a Fourth Amendment question, but this ruling is only peripheral to that. Basically, what the circuit has ruled in this case is that if 2703(d) is constitutional, then the government can use it to investigate and can keep it's investigations secret from the public (which is how almost all criminal investigation is conducted, btw). And if 2703(d) is unconstitutional, then that is a separate issue outside the scope of this relatively narrow appeal.

Don't defendants need to know what information is being used against them, and where that information came from? Pretty sure that's the law...

Depends what they are arguing. Since legalese bores me more than any other kind of paper, I can't read it to figure it out.

Paraphrasing: Fourth Circuit rules that government doesn't have to keep you informed of their progress in a criminal investigation.

This ruling has exactly nothing to do with the Fourth Amendment (which seems not to have even been part of the ACLU/EFF's argument in the first place).

Whether 2703(d) is constitutional in the first place may be a Fourth Amendment question, but this ruling is only peripheral to that. Basically, what the circuit has ruled in this case is that if 2703(d) is constitutional, then the government can use it to investigate and can keep it's investigations secret from the public (which is how almost all criminal investigation is conducted, btw). And if 2703(d) is unconstitutional, then that is a separate issue outside the scope of this relatively narrow appeal.

Dear homeowner,

We have reason to believe that a residence owned in your name at 123 Any Street is being used for illicit drug activity including, but not necessarily limited to, the sale of crack cocaine. A surprise raid has been planned for 48 hours from now. 21 tactical police officers will take part in the raid, which will commence at 4:18PM at the front and back entrances simultaneously. The officers will be equipped with standard tactical gear, a list of which is available upon request at your local precinct. At present, there is no plan to evacuate neighboring residences because the risk of hostage-taking by you was deemed to be low. We will notify you as soon as possible if this plan changes.

The names, photos, and home addresses of the 21 tactical officers, as well as the two undercover officers that signed affidavits about the illicit activities at your residence, and the judge who signed the search warrant, are listed in the attachment. Photocopies of the affidavits and warrant are attached as well for your convenience.

With every court ruling that the basically implies the Feds can pretty much do whatever the f'k they want, I keep hoping for another major data dump of information that was transparently removed from the Fed's servers and or archives. It seems that for change to actually happen or even be considered in the US, first there must be some outrageous, tragic event that must occur, natural and or man made. And only then would some type of dialogue be opened. You can start from recent events and go all the way back to the creation of the US. Everyone is content with the status quo until...

Don't defendants need to know what information is being used against them, and where that information came from? Pretty sure that's the law...

Only after they have been indicted. Read the last paragraph of the article. Those people are still under investigation, they are not charged.

And I do encourage people to read the concurring opinion of the decision to see how radical the requests are:

Quote:

The motions that support these § 2703(d) orders, the orders themselves, and the very existence of these orders implicate or directly convey highly private information and confirm the existence of a criminal investigation. Yet an essential purpose of the Electronic Communications Privacy Act is the protectionof the privacy interests of subscribers or customers in their electronically stored information and records. To presume a common law right of access to these records because the government has obtained an order from a federal court—which acts in these cases as a limited backstop against government overreaching—strikes at the Act’s essential purpose. The government’s monitored intrusion of the citizen’s private interests would thereby justify privacy intrusions by others. Rather than serving as a check against invasions of privacy, the Act would serve to magnify them. Consequently,I believe that a common law right of access is squarely at odds with the Act’s essential purpose.

Currently, if I am ever investigated by FBI, and they decided not to charge me. The 2703(d), the reason behind it, and whatever they dig up, remain confidential. Those are not public record. And that's the way I like it. I am not a high profile figure like those three. The mere fact that one had been subject of federal criminal investigation can be detrimental to most people. Not to mention that a lot private information the investigation can uncover, has no business being public record, unless they have been used in open court and become public record.

From the article

Quote:

Specifically the Fourth Circuit Court of Appeals rejected the argument that the public had a right to access such records under the First Amendment, as well as the fact that the case was in the public interest. The court ruled that such orders were part of the investigation and needed to stay sealed.

Did you notice that the argument was "public had a right" not "targets of investigation have a right" to access such records?

Himmler and Beria would be so proud of our government today, carrying on the traditions of a lawless government that does whatever the hell it feels like to any citizen that annoys it. The Founding Fathers would be ashamed.

The decision is not particularly concerning. The attitude of successive governments that have dedicated enormous effort to keeping their mistakes private and punishing those who point out said mistakes is the problem.

The Obama administration promised change. In the area of whistleblowing it has been extremely disappointing.

Daros: "Don't defendants need to know what information is being used against them, and where that information came from? Pretty sure that's the law..."

Not until they - become - defendants.

Not until they are charged with a crime. Not until that evidence is to be used against them. Never at the stage when evidence might be destroyed or a witness silenced.

See, this is a point I'd like to see clarified. Since they three people are being represented legally, that would in some ways indicate that they were defendants. I'm not sure how many people have lawyers that are working prior to being named in a court suit to this level--but I'm not a lawyer, so I can't really say anything too educated on that matter.

Since "defendant" wasn't explicitly used anywhere, I guess this is all pre-trial stuff and they have not been named yet in a suit? But if that's the case, then that blurb from the judge about how this was all like a grand jury trial but more so doesn't make any sense either.

Edit: I just caught the title of the article again and was reminded this was in an appeals court. Can a trial begin in an appeals court without having gone through lower ones first? I thought appeals were by their very definition for after an initial circuit court had ruled on a case and this was the second step. If that's the case, then these three should have already been named as defendants in a lower court case. But that's again not from anything educated in the law field, just speculation. Clarification would be helpful from anyone in the know.

Edit: I just caught the title of the article again and was reminded this was in an appeals court. Can a trial begin in an appeals court without having gone through lower ones first? I thought appeals were by their very definition for after an initial circuit court had ruled on a case and this was the second step. If that's the case, then these three should have already been named as defendants in a lower court case. But that's again not from anything educated in the law field, just speculation. Clarification would be helpful from anyone in the know.

A person can appeal any decision made by a judge or a finder of fact (usually but not always a jury), and probably some other odd decisions. You do not have to wait until the initial trial is over, but you do need to demonstrate that it's a reversible error.

For example, if the trial judge disallows one side to admit certain evidence, that specific decision can be appealed (and the main trial might be on hold during that time). There is an element of strategy to this, since you don't want to piss off the trial judge unnecessarily. I'm looking at you Prenda Law.

Edit: This means appeals can occur on pre-trial motions, which is what appears to have happened here.

Daros: "Don't defendants need to know what information is being used against them, and where that information came from? Pretty sure that's the law..."

Not until they - become - defendants.

Not until they are charged with a crime. Not until that evidence is to be used against them. Never at the stage when evidence might be destroyed or a witness silenced.

See, this is a point I'd like to see clarified. Since they three people are being represented legally, that would in some ways indicate that they were defendants. I'm not sure how many people have lawyers that are working prior to being named in a court suit to this level--but I'm not a lawyer, so I can't really say anything too educated on that matter.

Since "defendant" wasn't explicitly used anywhere, I guess this is all pre-trial stuff and they have not been named yet in a suit? But if that's the case, then that blurb from the judge about how this was all like a grand jury trial but more so doesn't make any sense either.

Edit: I just caught the title of the article again and was reminded this was in an appeals court. Can a trial begin in an appeals court without having gone through lower ones first? I thought appeals were by their very definition for after an initial circuit court had ruled on a case and this was the second step. If that's the case, then these three should have already been named as defendants in a lower court case. But that's again not from anything educated in the law field, just speculation. Clarification would be helpful from anyone in the know.

It didn't begin in the appeals court. They were appealing a lower court ruling, where they also lost.

What FrankM talking about was a "motion", the only valid reasons to granted for an appeal after the defendants have lost their cases.

Cherlindrea, Maybe this is what's the anonymous witnesses about in criminal cases that the DAs have the rights to conseal the identities of the witnesses to the defendants whether who have already been charged or not been charged for the safety of the witnesses.

And this is why we need wikileaks..... just to keep up with the BS government shovels...

Yeah, because I *totally* want wikileaks to release private information about me to the public.

Do you even understand what this case is about?

You don't seem to be aware that Wikileaks worked closely with the US government for six months before releasing a bunch of papers on the Afghan war, to ensure that it didn't put lives at risk by naming names.

There is a level of responsibility there - Wikileaks just doesn't believe that you have to hide all of the truth to protect the guilty.

Since "defendant" wasn't explicitly used anywhere, I guess this is all pre-trial stuff and they have not been named yet in a suit? But if that's the case, then that blurb from the judge about how this was all like a grand jury trial but more so doesn't make any sense either.

Grand jury != trial jury

The actual partial text of 5th amendment, with emphasis added.

Quote:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger;

6th amendment

Quote:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Or to put it another way, one only become accused in a criminal prosecution with all the procedural protection afforded under 6th amendment after government jump through the 5th amendment procedure hoop of grand jury first. Investigation != Accusation. There is a right to be informed of the nature and cause of the accusation. But there is no right to be informed of the nature and cause of the investigation.

If those three eventually get charged, they will have their day in court. If the investigation eventually close without bring charges, they can issue FOIA requests for their file, as provided by statute, like Aaron Swartz did after FBI closed their PACER investigation.

You don't seem to be aware that Wikileaks worked closely with the US government for six months before releasing a bunch of papers on the Afghan war, to ensure that it didn't put lives at risk by naming names.

There is a level of responsibility there - Wikileaks just doesn't believe that you have to hide all of the truth to protect the guilty.

So you are telling me that Wikileaks had found each and every one of those whose privacy had been betrayed to be guilty? Or that you and/or Wikileaks do not believe in "innocent til proven guilty."